There is no legal liability

Let no finger of any wrong-doing be pointed against Sean Abbott in the unfortunate death of Phil Hughes. By Fredun De Vitre.

The death of the young Australian batsman Phil Hughes is indescribably tragic. It is a freak accident, for which no one is to blame, least of all Sean Abbott, the bowler who bowled the ‘killer' ball. Abbott needs the world’s sympathy, help and proper counselling.

Is there an element of criminality involved? A case for a claim for civil compensation/damages? Let us be clear and unequivocal about it: the answer is an emphatic “no, absolutely not”.

The law recognises a principle, almost universally applied, which is best summarised in the Latin phrase, “Volenti Non Fit Injuria.” A person who voluntarily participates in a sporting event or in any dangerous activity, being aware of the likely risks of serious physical injury, would have no cause of action whatsoever, in criminal or civil law.

Every sportsman who enters the field of play — be it a football or hockey ground, a boxing ring, a cricket field, a tennis court, an ice skating rink or any other sports arena — voluntarily exposes himself to the risk of serious physical harm or injury. Having accepted this risk with open eyes, he — or his heirs, in the extreme case of death — cannot then claim compensation or initiate criminal action.

The Hughes case was a pure accident. There was no intent to harm or maim or injure. There was no ‘mens rea’. Both Hughes and Abbott were playing within the rules of the game.

However, in a given case, an injury — or death — on the sports field may be actionable. Cricket fans of a certain vintage will remember the Miandad-Lillee face-off many years ago at Melbourne. There is a dramatic photograph capturing the incident — Miandad, bat raised, ready to strike a defiant Lillee in a defensive boxing pose.

Had Miandad gone through with the bat-swing and maimed or killed Lillee, he would have faced criminal charges for sure and also claims for compensation.

In that scenario, Miandad was not acting as per the rules. The ‘risk’ which Lillee accepted when he agreed to participate in the match, was only a reasonable, foreseeable risk. It did not extend to the risk of an intentional assault or of someone deliberately causing him physical injury.

Players on the field of play are not totally exempt from the clutches of the law when their actions cause injury or death. In the Miandad-Lillee incident, it is clear that the physical assault — had the enraged batsman gone through with the swing of the bat — was intentional and was a crime. The fact that it was committed on a cricket field in the course of a match, would not absolve its perpetrator of the legal consequences. No player enjoys general immunity for his criminal actions, merely because these take place in a sporting arena during a sporting contest.

This gives rise to an interesting question. Would a player be liable if the injury or death is caused on account of an action in breach of the rules of play? For instance, if the batsman was injured or maimed by a no ball, could he sue the bowler?

The victim of a vicious, illegal football tackle or a deliberate hockey foul, which caused serious injury, could successfully sue to recover compensation for his injury, in addition to the penalty that may be inflicted on the offending player in accordance with the rules of the sport.

But, in my view, in the ‘no ball’ injury case, no action would lie in a court — in such a case, the batsman voluntarily accepted the risk that a bowler may bowl a no ball, may overstep, not intentionally, not by design but as a part of the game.

In the case of the illegal tackle or the deliberate, designed foul with a wildly-swinging hockey stick, any resulting injury would be actionable, because it would be construed as a deliberate, intentional, conscious attempt to cause physical harm, injury or even death.

Let no finger of any wrong-doing be pointed against Sean Abbott in the unfortunate death of Phil Hughes.

Incidentally, such tragic incidents only highlight the courage, technique and greatness of outstanding Indian batsmen like Sunil Gavaskar, who faced the most fearsome fast bowlers in the world without helmets and did not once get hit or injured!

One other aspect thrown up by the Hughes case concerns the extent of the liability of the manufacturer of the helmet. He could be successfully sued if it is proved that the helmet was defective or made of sub-standard materials.

Ordinarily, the manufacturer of the helmet would be required by law to warrant that it was safe for use for its intended purpose and was tested to withstand a particular stipulated degree of force or ‘shock’ when a cricket ball is hurled at it. Breach of such a warranty would put the manufacturer of the helmet in the same position as the manufacturer of, say, a car whose airbags failed the ‘impact’ test.

But in the unfortunate accident to Hughes, the facts would not support a claim against the makers of the helmet. No blame can be placed on the helmet-maker. From all accounts, the point of impact was not within the area covered by the helmet. Nari Contractor was hit on his temple. Hughes suffered the fatal blow near the nape of his neck, outside the area that the helmet was supposed to provide protection for. There would obviously be no manufacturer’s warranty that the helmet would protect that area.

This, then appears to be a case of a young man whose unfortunate, untimely death on a cricket pitch gives rise to no legal liability. Strange, but true.

The author is a senior Counsel and TV sports commentator